Itl/3/2013 Of The Commissioner Of Income Tax -I Nagpur v. Shri Tekchand Gangwani (Huf)

IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR. INCOME TAX APPEAL NO. 3/2013. The Commissioner of Income Tax-I, Nagpur.VERSUS Shri Tekchand Gangwani (HUF). _____________________________________________________________________________________ Office Notes, Office Memoramda of Coram,appearances, Court's orders of directionsand Registrar's Orders. Court's or Judge's orders. CORAM : B.P. DHARMADHIKARI& A.S. CHANDURKAR, JJ DATED : JULY 05, 2013. Heard Shri Anand Parchure, learned Counsel for the Revenue. In survey under Section 133A of Income Tax Act, 2 notepads were found and it is the case of revenue that the appellant accepted to surrender additional income of Rs. 40 lakhs. He however, later on withdrew the said admission and surrendered gross receipts of Rs. 21,50,500/- with Rs. 3,22,000/- as tax liability upon it. Shri Parchure, learned Counsel submits that the balance addition of Rs. 13,89,500/- by the A.O., has not been appropriately dealt with by the ITAT. His further contention is, retraction of such admission by the assessee itself is unwarranted and serious cognizance of such withdrawal needed to be taken. Facts show that search was on 23.12.2005 and return was filed on 31.10.2006 for Rs. 7,98,130/-. Later on an additional income of Rs. 21,50,500/- was added by the assessee to the assessment year 2006-07. In so far as the balance amount of Rs. 13,89,500/- is concerned, the assessee has explained it as business expenditure. The CIT (Appeals) and the ITAT has accepted this submission. In this background, with following two questions, as substantial questions of law, present Appeal under Section 260-A of the Income Tax Act, has been filed. “(i)Whether on the facts of the case and in law the ITAT was correct in accepting the retraction from an earlier disclosure of additional income obtained during survey, without appreciating that the said retraction was substantially belated and submitted without proof or corroboration ? (ii)Whether the learned ITAT failed to see that the statement made by the assessee at the time of survey of additional income is a admission and best piece of evidence ?” Perusal of order passed by the CIT in appeal shows that disclosure of an amount of Rs.21,50,500/- as gross receipts by assessee tallied with the notepads and hence, the CIT (Appeals) has accepted it and ITAT has maintained it. In so far as the addition of Rs. 13,89,500/- is concerned, the CIT (Appeal) has found that the same was not shown to be an investment, and burden in this respect was upon the revenue. It is further found that the assessee in course of assessment proceeding had obtained confirmation from certain persons to the effect that the notings were in respect of expenditure incurred for earning transportation receipts. The assessing officer observed that claim of the assessee was that these expenses were allowable claims, but, only without genuine evidence and genuine documents. The CIT in appeal has further observed that the confirmations submitted in this respect were in respect of independent parties and detail address of such persons were on record. The assessing officer did not found said document to be not genuine or not reliable. The CIT found that on the basis of such material it could not have been gathered that the amount of Rs. 13,89,500/- was petty advance, given by the assessee. It has perused those documents and also concluded that the entries therein reveal that those notings could not have been in respect of petty advances. ITAT in appeal was perhaps not called upon to look into said aspect, as its order does not comment upon the said finding. The memo of appeal filed before the ITAT is not produced before this Court. Only questions of law on which this Court is approached and pressed before this Court, are already reproduced above. ITAT in appeal was perhaps not called upon to look into said aspect, as its order does not comment upon the said finding. The memo of appeal filed before the ITAT is not produced before this Court. Only questions of law on which this Court is approached and pressed before this Court, are already reproduced above. It is therefore, apparent that in absence of appropriate challenge to the adjudication of the facts, the contention that retraction of admission by itself is sufficient to vitiate the dis-allowance by CIT in appeal, up held by ITAT in further appeal cannot be appreciated in this jurisdiction. No substantial question therefore, arise for determination. Appeal is thus, dismissed. No cost. JUDGE JUDGE